United States District Court, E.D. Michigan, Southern Division
Judge David R. Grand
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
E. LEVY, UNITED STATES DISTRICT JUDGE.
August 11, 2017, the Court issued an opinion and order
granting defendant Terry Willis' motion to vacate his
sentence on the grounds that two of his four prior
convictions, armed robbery and assault with intent to murder,
did not qualify as crimes of violence under the Armed Career
Criminal Act (ACCA). (Dkt. 192.) On August 14, 2017, the
United States filed a motion for reconsideration, asking that
the Court reconsider in light of the Sixth Circuit's
decision in Raybon v. United States, No. 16-2522,
2017 WL 3470389 at *5 (6th Cir. Aug. 14, 2017) (holding that
Michigan's assault with intent to do great bodily harm
qualified as a crime of violence under the ACCA). The Court
concluded Raybon was controlling precedent, granted
the United States' motion for reconsideration, and
determined that defendant was not eligible for resentencing.
August 31, 2017, defendant filed a motion for
reconsideration, asking the Court to reconsider its
conclusion that defendant is not eligible for resentencing in
light of additional Sixth Circuit precedent holding that
breaking and entering - one of defendant's prior
convictions that was not analyzed in the initial motion to
vacate - cannot be considered an ACCA predicate offense.
United States v. Ritchey, 840 F.3d 310, 321 (6th
Cir. 2016). (Dkt. 195.)
motion for reconsideration should be granted “if the
movant demonstrates a palpable defect by which the court and
the parties have been misled and that a different disposition
of the case must result from a correction thereof.”
In re Greektown Holdings, LLC, 728 F.3d 567, 573-74
(6th Cir. 2013). “A palpable defect is one that is
‘obvious, clear, unmistakable, manifest, or
plain.” Majchrzak v. Cty. Wayne, F.Supp.2d
586, 596 (E.D. Mich. 2011).
provides a one-year statute of limitations for filing a
federal habeas petition.” Cleveland v.
Bradshaw, 693 F.3d 626, 631 (6th Cir. 2012).
Specifically, 28 U.S.C. § 2255(f) mandates that a
“1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from the
latest of -
(1) the date on which the judgment of conviction became
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.”
28 U.S.C. § 2255(f)(1)-(4).
present case, judgment was entered on July 16, 2014. (Dkt.
118.) Because defendant did not appeal, the judgment became
final “upon the expiration of the period in which the
defendant could have appealed to the court of appeals”
which, “in the absence of an actual district court
determination of good cause or excusable neglect, [is] ten
days after the entry of judgment.”
Sanchez-Castellano v. United States, 385 F.3d 424,
427 (6th Cir. 2004). Therefore, judgment of conviction was